Clyde and Co makes big noise with low level hearing loss victory

As part of our continuing initiative to tackle the rise of low level noise induced hearing loss (NIHL) claims, our most recent piece of strategic litigation has expanded the de minimis threshold, under which claims will not be compensable.

The Judge found a hearing loss of 3.3db did not make the Claimant appreciably worse off, increasing the threshold from 3db in our previous case of Marian Holloway v Tyne Thames Technology Ltd.

The decision is good news for defendants who are now able to challenge additional low level loss claims, even where there is no defence on breach of duty or causation.

Facts

The Claimant brought NIHL claims against two Defendants for two periods of employment between 1978 – 1984 and 1987 – 1991. We acted for both Defendants.

Medical evidence

The Claimant's medical evidence reported 1.66dB NIHL over 1, 2 and 3kHz. However due to the loss at 4kHz, a calculation over 1, 2 and 4kHz was considered more appropriate, which resulted in a 5.96dB NIHL. Tinnitus was also alleged, however it was considered to be insignificant.

The Defendants' medical evidence noted there was asymmetry at 3kHz which implied a non-noise / non-age cause and therefore the less deafened right ear should be used only. Based upon the DHSS method, the expert found no NIHL.

Applying a 'bulge' analysis, the Defendants' expert found NIHL of 2.2dB, which was considered de minimis. Whilst it was acknowledged there was a 15dB difference between the ears at 4kHz, it was not considered this isolated hearing loss would be disabling. Additionally the alleged tinnitus was considered to be physiological.

Joint statement

Within their joint statement, the experts agreed, by applying the Lutman et al pass two method, the Claimant sustained NIHL when measured at 1, 2 and 3kHz of 3.5dB when binaurally averaged and 3.3db in his right ear. This was agreed as the best measure given the asymmetry between the ears.

The Claimant's expert reported this level of loss was not insignificant whereas the Defendants' expert remained of the view the Claimant would not be appreciably worse off. The Defendants' expert also reported the hearing loss was insufficiently bad to warrant hearing aids.

Judgment

The main area of contention within proceedings was whether the Claimant was 'appreciably worse off' as a result of this hearing loss. The main authority cited was Dryden v Johnson Matthey plc in which the Supreme Court broadened what constitutes an actionable personal injury.

The Claimant's expert made various concessions during cross examination, including an error in providing calculations based upon the left ear. Calculations in his original report were based on the Black Book, whereas it was conceded he would now use Table 2 in the 2000 Guidelines. He was also hesitant in answering some questions during cross examination. As a result the Judge found the Defendants' expert's evidence to be more reliable.

The Judge found the Claimant had not established that the hearing loss of 3.3db in his right ear made him appreciably worse off and accordingly his claim failed.

It was noted the evidence of the Claimant did not assist, as he was unable to provide evidence as to how much worse the hearing loss was than if he had suffered only age related hearing loss. The case was therefore a matter for the experts and the court.

The Judge also confirmed he preferred the traditional method of calculating hearing loss over 1,2 and 3kHz, which it was noted is reinforced by the 2015 guidelines, which both experts agreed was a reasonable method of estimating the degree of NIHL. He was not persuaded it would be appropriate to depart from the 2015 guidelines and consider the loss at a frequency of 4kHz, but advised the Claimant would not have been appreciably worse off in any event.

What can we learn?

• This Judgment coupled with the case of Holloway indicates an increasing trend that Courts are prepared to accept low level NIHL can be classed as de minimis, as a claimant will not be appreciably worse off.
• The Holloway decision suggested a change in the way the courts would view de minimis levels of loss. However, whilst the previous authority provided comfort that 3dB could be deemed not appreciable; this has now increased to 3.3dB. This is a developing area of law and the threshold should continue to be challenged in appropriate cases.
• Insurers continue to be hounded by numerous NIHL claims in which the courts have displayed minimal sympathy for insurers and defendants. The proportion of minimal claims is increasing as NIHL decreases with decreasing noise exposures. It has historically been the mind set of many claimants that they have only to prove there has been an additional hearing loss (even if only minimal) attributable to noise exposure for their case to succeed. This decision further indicates this is not the case and evidence they will be appreciably worse off will be required.
• Recently harvested NIHL claimants do not emanate from traditional noise intensive employment backgrounds. Where NIHL is detected, comparatively low levels of NIHL are commonplace and a high proportion suffer from pure age related hearing loss (AAHL) rather than NIHL or hybrid AAHL / NIHL.
• Claimant solicitors and insurers should take note of the Judgment in this case. Claimants should not expect easy and quick settlements from low level loss claims. Each claim should be carefully considered on its own merits and insurers / defendants should not shy away from challenging low level loss claims, even if there is no defence on breach of duty.
• It is also helpful to defendants that the Judge would not depart from a calculation over 1, 2 and 3kHz. Claimants often argue that calculations should be made over 1, 2 and 4kHz where there is a loss at 4kHz; the argument being it is an important frequency to discern speech and may give rise to a disability.

Authors: Judith Martin (Partner) and Aimee Wilson (Chartered Legal Executive)